10 Wash. 648 | Wash. | 1895
The opinion of the court was delivered by
The appellant is a corporation, and, in the year 1890, and for some years prior thereto, it owned and operated certain coal mines at Carbonado in this state. It was also the owner of a narrow-gauge railroad, which it constructed and used for the purpose of transporting its coal to a station on the Northern Pacific railroad about three-quarters of a mile distant from its mines.
On or about the 24th day of January, 1890, the respondent was employed by the company to assort, or clean, coal at its coal bunkers, with the understanding that he should work whenever required, and be paid by the day when engaged at said work. On April 15, 1890, the respondent, while riding through a tunnel on a brake beam in front of one of the company’s engines, was struck by a projecting rock and thereby seriously inj ured. He was taken to the house of his brother-in-law, and there treated by Dr.
Subsequently, the respondent instituted an action against the coal company to recover damages for the injury sustained while riding upon the locomotive engine, and also for further injury by reason of negligent and unskillful treatment by Dr. Garner. The cause proceeded to trial, and, at the close of the plaintiff’s testimony, on motion of the defendant (which motion was in form a motion for a non-suit) the court directed the jury to find a verdict for the defendant. From this order and judgment the plaintiff appealed.
Upon the trial here this court determined that the plaintiff was not entitled to recover for the injury sustained in the tunnel, because it was apparent from the record that he was-himself guilty of contributory negligence. As to the first cause of action the ruling of the trial court was therefore sustained. But, although we found the proof too uncertain and meagre to determine satisfactorily what were the rights of the plaintiff under his cause of action for injuries sustained on account of alleged negligent and unskillful surgical treatment, we came to the conclusion that the evidence upon that branch of the case should have been submitted to the consideration of the jury, and accordingly remanded the cause for a new trial, with leave to file new pleadings. See 6 Wash. 52, (32 Pac. 1012).
The plaintiff thereupon filed an amended complaint, stating, but not separately, the same causes of action which were set up in his original complaint. The defendant moved the court to strike out certain paragraphs and portions of the complaint on the ground that the same were irrelevant, immaterial and redundant. This motion was
It appears that the appellant corporation, in conducting its business, usually employed several hundred men. And the proof shows that it was the custom of the paymaster of the company to retain one dollar per month from the wages of each employe, and that the money so realized was kept as a special fund for the payment of the expenses of the hospital and the salary of the physician employed to attend and treat sick and disabled employes and their families, and was disbursed by him whenever required for those purposes. None of the money was used by the company in transacting its business, nor did it in any way derive any profit from it. The respondent paid one dollar per month (which was charged to his account as “hospital”) out of his wages while in the service of the company, without objection, and without asking for any information as to the purpose for which it was to be used, but he seems to have understood from others that it was to be applied towards the payment of the doctor in case of sickness or injury of employes.
We think the court committed no error in refusing to strike out portions of the complaint, on the ground stated in the motion. Where a complaint sets forth two causes of action, which may properly be joined, without separately stating them as required by the code, the proper remedy is a motion to require plaintiff to make his complaint more definite and certain by stating separately his several causes of action. Pomeroy, Code Remedies, § 447; Boone, Code Pleading, § 266.
And, besides, the paragraphs sought to be stricken out are all essential allegations in the only cause of action stated in the complaint, which, according to the claim of appellant, has not already been determined by this court. The paragraphs objected to could not be stricken out without giving the motion the effect of a general demurrer, for, without them, the complaint would state no cause of action for surgical malpractice.
After the plaintiff had rested, the defendant moved for a non-suit as to the first cause of action, on the ground of contributory negligence on the part of plaintiff. A non-suit was denied, but the court thereupon ruled that the defendant was called upon to answer that part of the case only which pertained to the treatment of plaintiff’s injuries. Subsequently the court charged the jury to disregard entirely the first cause of action, but as they were not instructed to disregard all, or any particular portion of the evidence which had been introduced to sustain that part of the case, we hardly think that the objectionable evidence can be said to have been thereby fully withdrawn from the consideration of the jury. In our opinion this charge of the learned judge was too general to convey to the minds of the jury, with any degree of certainty, what was really intended by the court. In fact, by its terms it left the jury to determine for themselves what evidence they were to disregard, instead of pointing it out to them, and was, therefore, liable to confuse and mislead.
It is contended on the part of appellant that the verdict and judgment cannot be sustained, (1) because the evidence fails to show that the respondent’s injuries were negligently or unskillfully treated by Dr. Garner; (2) because it clearly appears from the evidence that the appellant never employed or agreed to employ the doctor to treat said injuries ; and (3) because the proofs show no liability on the part of appellant for the injuries complained of, even if it were shown that the doctor was employed by it and was negligent in the discharge of his professional duties towards the respondent.
As already stated, Dr. Garner’s treatment of the respondent was directed solety to the fracture of the femur. And it does not appear from the evidence that the fracture itself
It is conceded in this case that no express contract was made between the company and the respondent in relation to his treatment or care in case he became sick or was injured. And it therefore follows that if the appellant was bound to furnish a surgeon to treat respondent’s injuries it was by virtue of such a contract as the law implies from the acts of the parties, and the surrounding circumstances.
In this case the one dollar per month was deducted from
But, suppose the contention of the respondent to be true that the appellant so conducted itself that it caused the respondent to believe that it was furnishing to him surgical treatment, and that it is estopped from denying that such was the fact, does it follow under the facts of this case that it is liable for the malpractice of the physician ? We think it does not. This hospital was maintained and the physician provided for the sole purpose of relieving sick and injured employes without expense to them and without any intention on the part of the company of making any profit out of the undertaking. It was therefore a charitable institution and it was supported by the contributions of employes, and carried on in their interests. And if the com
Stiles and Hoyt, JJ., concur.
Note — The question of the liability of an employer for negligence of a physician engaged by him to treat injured employes where the physician was engaged as a mere matter of kindness to the employes, is considered in a note to Williamson v. Louisville Industrial School, (Ky.) 23 L. R. A. 200, and in the later cases of Union Pac. R. R. Co. v. Artist, 23 L. R. A. 581, and Eighmy v. Union Pac. R. R. Co., (Iowa) 27 L. R. A. 296.